Habendum. interest, or incident. 5°. It must be such a thing as 7°. It must 69. With respect to the habendum, its office is only to limit the certainty of the estate granted; therefore no person can take an immediate estate by the 2 Rep. 55 a. habendum of a deed, where he is not named in the premises; for it is in the premises of a deed that the thing is really granted. Brooks v. Brooks, 2 Roll. Ab. 67. Windsmore v. Hobart, 70. If land be given to J. S. habendum, to him and a stranger, for a certain estate; this is void as to the stranger, because he was not mentioned in the premises : and when J. S. dies, there will be no occu ante, ch. 19. pancy; for the grant to the stranger in the habendum was intended an estate to him, and not as a limitation of the estate of J. S. § 30. 1 Inst. 21 a. 71. There are, however, some exceptions to this rule. 1. If lands are given in frank marriage, the wife, who is the object of the gift, may take by the habendum, though not named in the premises. 2°. A person not named in the premises may take an estate ante, c 2. § 3. in remainder by the habendum. 3°. If no name whatever be mentioned in the premises, then a person named in the habendum may take. Touch. 75. 1 Inst. 7 . n. 3. Sammes 72. There is a case where the two Ch. Justices and the Ch. Baron certified to the Chancellor that a lease was good, though the lessee was only named in the habendum. 78. In declarations of uses, a use may be declared in the habendum to a person to whom no estate is granted in the premises. 74. Sir T. B., by indenture between him and John 13 Rep. 55. and George Sammes, bargained, sold, and enfeoffed Case, to John Sammes, to hold to the said John and George Sammes, their heirs and assigns, to the use of them and their heirs for ever. Resolved, that although the feoffment was good only to John and his heirs, yet the use limited to John and George and their heirs, was good; because the seisin of John was sufficient to serve the use declared to George. 65. Touch. 76. 75. Nothing can be limited in the habendum of a 2 Roll. Ab. deed, which has not been given in the premises; because the premises being the part of a deed in which the thing is granted, it follows that the habendum, which is only used for the purpose of limiting the certainty of the estate, cannot increase the gift; for in that case the grantee would in fact take a thing which was never given to him. 65. 76. Thus if a person grants a manor, habendum 2 Roll. Ab. una cum another manor, or una cum advocatione of another manor, this is not good; because it was not included in the premises. But if a thing is compre- Plowd. 157. hended in the premises, and has another name in the habendum, the habendum is good: as if the nomination of an advowson is granted, habendum the advowson, it is good, though it varies in name; for it is one and the same thing. 77. Where the habendum is repugnant and con- Void when repugnant to trary to the premises, it is void, and the grantee will the Premises. take the estate given in the premises. This is a c. 19. § 13. consequence of the rule already stated, that deeds shall be construed most strongly against the grantor; therefore that he shall not be allowed to contradict 1 Inst. 299 a. 8 Rep. 56 b. or retract, by any subsequent part of the deed, the gift made in the premises. 78. Thus if lands are given in the premises of a Plowd. 153. deed to A. and his heirs, habendum to A. for life; the habendum is void; because it is utterly repugnant to, 2 Rep. 23 b. Baldwin's and irreconcileable with the premises. So if the grant were to two persons, habendum to the one for life, remainder to the other for life, it would be void; because by the premises the grantees were joint tenants; so the habendum would sever the jointure, and make the one to have the whole during his life, and the other to have the whole after him. 79. In the case of things which derive their effect from the delivery of the deed, without other ceremony, and which lie in grant; there the habendum, if repugnant to the premises, is void: as if a man grants rent or common out of his land, in the premises of a deed, to one and his heirs, habendum to the grantee for years, or for life the habendum is repugnant and void; for an estate in fee passed in the premises, by the delivery of the deed. 80. But where a ceremony is requisite to the perfection of the estate limited by the premises; and nothing more than the mere delivery of the deed is required to the perfection of the estate limited by the habendum; there, although the habendum be of a lesser estate than is mentioned in the premises, if the ceremony is not performed, it shall stand. 81. A person by indenture covenanted, granted, and demised, and to farm let, certain lands to A. B. and A. her son, and to the heirs of the said A.; habendum to them from the date of the same indenture until the end of 99 years: no livery of seisin was made. It was resolved, that as livery of seisin was necessary to perfect the estate limited in fee, nothing would have passed but an estate at will, if the deed had not gone farther: but as an estate for years was limited in the habendum, that was good presently, by the delivery of the deed. And so it appeared to have been the intention of the parties that the deed should take effect by the delivery. 82. There are, however, several cases where the ha- But may bendum is allowed to abridge, or rather qualify the pre-qualify and abridge or mises; for we have seen that where a deed first speaks enlarge them. 8 Rep. 154 b. in general words, and afterwards descends to special ante, c. 19. ones, if the special words agree with the general ones, § 8. the deed shall be intended according to the special words. 83. Thus where no estate is limited in the pre- 1 Inst 183 a. mises, and an express estate for years is limited in 2 Rep. 55 a. the habendum, this will qualify and abridge the general intendment of the premises, by which an estate for life would otherwise have passed. 84. If lands are given in the premises to A. 8 Rep. 154 b. and his heirs, habendum to him and the heirs of his Thurman's Case, body, he will only take an estate tail; because the 1 Roll. Ab. habendum may qualify and restrain the general import of the word heirs. 68. 85. Where lands were granted to A. and his heirs, Pilsworth v. Pyett, habendum to him and his heirs for three lives; the T. Jones, 4. habendum was construed so as to abridge the estate given in the premises, to an estate for three lives, 190 b. 86. If a lease be made to two persons, habendum 1 Inst. 183 b. the one moiety to the one, and the other moiety to the other, the habendum makes them tenants in common; whereas by the premises they were joint tenants. 87. The estate given in the premises may be enlarged by the habendum; thus where an estate is 1 Inst. 299 a. given in the premises to the grantee for life, habendum to him and his heirs, the grantee will take an estate in fee. not con 88. Where the premises and the habendum of a Sometimes deed are equally clear, the former will not be con- trolled by the Premises. ante, c. 19. § 5. 8 Rep. 154 b. 1 Inst. 21 a. Turnman v. Tit. 2. c. 1. § 19. Words of Limitation 108. 4th edit. trolled by the latter, but both will be allowed to have an operation; it being a rule, that a deed shall be construed in such a manner as that each part may be effectual, if they can stand together. 89. Thus if lands are given in the premises to a person and the heirs of his body, habendum to him and his heirs, he will take an estate tail, with a fee simple expectant. 90. Lands were given to husband and wife, and to their heirs, habendum to them and the heirs of their bodies. It was held that the grantees took an estate tail, with a fee simple expectant. Mr. Hargrave has observed, that this case was attended with circumstances particularly showing an intention to pass both: for there was a reservation of tenure to the lord paramount, which could not be, if only an estate tail passed to the donee, and the reversion had remained in the donor, for then the tenure must have been of the donor. 91. The words inserted in the habendum for the and Purchase, purpose of showing the quantity of estate intended to be given, are called words of limitation; in contradistinction to the words in the premises by which the lands are given, and which are called words of purCont. Rem. chase. Thus Mr. Fearne says-" In general, words of purchase are those by which, taken absolutely, without reference to or connection with any other words, the estate first attaches, or is considered as commencing in the person described by them: whilst words of limitation operate by reference to or connexion with other words, and extend or modify the estate given by those other words." Idem. 107. 92. Mr. Fearne had previously observed, that "when the word heirs, &c. operates only to expand an estate in the ancestor, so as to let the heirs |